takings claim in Michigan

2009This Court in Braun, supra at 159 , and more recently in Frenchtown Charter Twp, supra at 7, adopted the rule of finality in Palazzolo v Rhode Island, 533 US 606, 620-621 ; 121 S Ct 2448 ; 150 L Ed 2d 592 (2001): Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed

2009This Court in Braun, supra at 159 , and more recently in Frenchtown Charter Twp, supra at 7, adopted the rule of finality in Palazzolo v Rhode Island, 533 US 606, 620-621 ; 121 S Ct 2448 ; 150 L Ed 2d 592 (2001): Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed

2026Respondent asserts that Tyler v Hennepin Co, 598 US 631 ; 143 S Ct 1369 ; 215 L Ed 2d 564 (2023), and Knick v Scott Twp, 588 US 180 ; 139 S Ct 2162 ; 204 L Ed 2d 558 (2019), question Nelson and compel a different result, that the Rafaeli Court did not find Nelson helpful, and that this Court failed to understand the effect of the procedural differences between the foreclosure scheme at issue in Nelson and the statutory scheme established by 200 PA 256 .

2022In Knick, 139 S Ct at 2179 , the Supreme Court held that “[a] property owner may bring a takings claim under § 1983 upon the taking of his property without just compensation by a local government.” The Knick Court overruled its decision in Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City, 473 US 172 ; 105 S Ct 3108 ; 87 L Ed 2d 126 (1985), which had held that a plaintiff lacked an actionable Fifth Amendment takings claim “until the property owner ha[d] tried and failed to obtain compensation through the available state procedure.” Id. at 2173.

2020That factor is not at issue in this case. -3- [Braun v Ann Arbor Charter Twp, 262 Mich App 154, 159 ; 683 NW2d 755 (2004) (quotation marks and citation omitted; emphasis added).] If a property owner fails to obtain a final decision that resolves the possibility of alternative relief, a takings claim will not be considered ripe for judicial review.

2009This Court in Braun, supra at 159 , and more recently in Frenchtown Charter Twp, supra at 7, adopted the rule of finality in Palazzolo v Rhode Island, 533 US 606, 620-621 ; 121 S Ct 2448 ; 150 L Ed 2d 592 (2001): Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed

2026Respondent also argues that this Court’s takings analysis in Muskegon Treasurer does not apply because its reliance on Nelson v City of New York, 352 US 103 ; 77 S Ct 195 ; 1 L Ed 2d 171 (1956), was misplaced.

2026Respondent also argues that this Court’s takings analysis in Muskegon Treasurer does not apply because its reliance on Nelson v City of New York, 352 US 103 ; 77 S Ct 195 ; 1 L Ed 2d 171 (1956), was misplaced.

2022In Knick, 139 S Ct at 2179 , the Supreme Court held that “[a] property owner may bring a takings claim under § 1983 upon the taking of his property without just compensation by a local government.” The Knick Court overruled its decision in Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City, 473 US 172 ; 105 S Ct 3108 ; 87 L Ed 2d 126 (1985), which had held that a plaintiff lacked an actionable Fifth Amendment takings claim “until the property owner ha[d] tried and failed to obtain compensation through the available state procedure.” Id. at 2173.

2022In Knick, 139 S Ct at 2179 , the Supreme Court held that “[a] property owner may bring a takings claim under § 1983 upon the taking of his property without just compensation by a local government.” The Knick Court overruled its decision in Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City, 473 US 172 ; 105 S Ct 3108 ; 87 L Ed 2d 126 (1985), which had held that a plaintiff lacked an actionable Fifth Amendment takings claim “until the property owner ha[d] tried and failed to obtain compensation through the available state procedure.” Id. at 2173.

2020In this case, the property property is sold the former owner’s debt is canceled.”), citing Comment, Tax Foreclosure: A Drag On Community Vitality Or A Tool For Economic Growth?, 81 U Cin L Rev 1615, 1617 (2013) (explaining that the collection of unpaid real-property taxes involves, among other things, “liquidation of the property by public sale in order to satisfy the debt owed”). 131 Plaintiffs’ Supplemental Brief on Appeal (December 13, 2019) at 4 n 1, citing United States v Miller, 317 US 369, 373 ; 63 S Ct 276 ; 87 L Ed 336 (1943) (stating that just compensation for a takings claim require

2020In this case, the property property is sold the former owner’s debt is canceled.”), citing Comment, Tax Foreclosure: A Drag On Community Vitality Or A Tool For Economic Growth?, 81 U Cin L Rev 1615, 1617 (2013) (explaining that the collection of unpaid real-property taxes involves, among other things, “liquidation of the property by public sale in order to satisfy the debt owed”). 131 Plaintiffs’ Supplemental Brief on Appeal (December 13, 2019) at 4 n 1, citing United States v Miller, 317 US 369, 373 ; 63 S Ct 276 ; 87 L Ed 336 (1943) (stating that just compensation for a takings claim require

2020It is also worth noting, in this regard, that the taxpayers would be free to conduct a private sale of the property during the redemption period prior to title vesting in the government and, by failing to do so, might be considered to have agreed to the value produced by the tax- foreclosure sale.86 83 See note 52 of this opinion. 84 See State Theft, 54 Real Prop Tr & Est L J at 126 (noting that limiting the taxpayer to the surplus might cause him or her to lose some equity but arguing that this result might be consistent with the “just compensation” requirement). 85 See United States v Commod

2020It is also worth noting, in this regard, that the taxpayers would be free to conduct a private sale of the property during the redemption period prior to title vesting in the government and, by failing to do so, might be considered to have agreed to the value produced by the tax- foreclosure sale.86 83 See note 52 of this opinion. 84 See State Theft, 54 Real Prop Tr & Est L J at 126 (noting that limiting the taxpayer to the surplus might cause him or her to lose some equity but arguing that this result might be consistent with the “just compensation” requirement). 85 See United States v Commod

2020INTERPRETIVE ISSUES The majority correctly notes that “a claimant must first establish a vested property right under state law” in order to have a takings claim and that “ ‘the existence of a property interest is determined by reference to existing rules or understandings that stem from an independent source such as state law.’ ”2 Then the majority recounts the familiar rule that “[o]ur ‘primary objective’ in interpreting a constitutional provision such as our state’s Takings Clause is ‘to determine the text’s original meaning to the ratifiers, the people, at the time of ratification.’ ”3 Howe

2020INTERPRETIVE ISSUES The majority correctly notes that “a claimant must first establish a vested property right under state law” in order to have a takings claim and that “ ‘the existence of a property interest is determined by reference to existing rules or understandings that stem from an independent source such as state law.’ ”2 Then the majority recounts the familiar rule that “[o]ur ‘primary objective’ in interpreting a constitutional provision such as our state’s Takings Clause is ‘to determine the text’s original meaning to the ratifiers, the people, at the time of ratification.’ ”3 Howe

2020That factor is not at issue in this case. -3- [Braun v Ann Arbor Charter Twp, 262 Mich App 154, 159 ; 683 NW2d 755 (2004) (quotation marks and citation omitted; emphasis added).] If a property owner fails to obtain a final decision that resolves the possibility of alternative relief, a takings claim will not be considered ripe for judicial review.

2007In Braun v Ann Arbor Charter Twp, 262 Mich App 154, 159 ; 683 NW2d 755 (2004), this Court quoted Palazzolo v Rhode Island, 533 US 606, 620-621 ; 121 S Ct 2448 ; 150 L Ed 2d 592 (2001), in which the Supreme Court explained: “Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waive

2020See Sheehan v Suffolk Co, 67 NY2d 52, 59, 60 ; 490 NE2d 523 (1986) (“There is no constitutional prohibition against such a full forfeiture” of the “surplus.”); Ritter v Ross, 207 Wis 2d 476, 484 ; 558 NW2d 909 (App, 1996) (“We thus consider whether the Ritters had a property interest in the excess proceeds of the foreclosure sale . . . .”); Oosterwyk v Milwaukee Co, 31 Wis 2d 513, 517 ; 143 NW2d 497 (1966) (rejecting an unjust-enrichment claim for surplus proceeds). 58 Plaintiffs’ brief states, “The private property interest at issue in this case is privately generated and owned equity.” Plain

2020See Sheehan v Suffolk Co, 67 NY2d 52, 59, 60 ; 490 NE2d 523 (1986) (“There is no constitutional prohibition against such a full forfeiture” of the “surplus.”); Ritter v Ross, 207 Wis 2d 476, 484 ; 558 NW2d 909 (App, 1996) (“We thus consider whether the Ritters had a property interest in the excess proceeds of the foreclosure sale . . . .”); Oosterwyk v Milwaukee Co, 31 Wis 2d 513, 517 ; 143 NW2d 497 (1966) (rejecting an unjust-enrichment claim for surplus proceeds). 58 Plaintiffs’ brief states, “The private property interest at issue in this case is privately generated and owned equity.” Plain

2020But it is hard to imagine what the majority would do in such a case besides either denying the takings claim under the theory it adopts here or reconsidering whether it is based on the taxpayer’s right to the equity in his or her property. 80 See Polonsky, slip op at 5 (noting that the statutory scheme did not require the government to sell the foreclosed property but that, in those cases, the government has conflicts with the Takings Clause by failing to pay over the equity). 81 See note 52 of this opinion and accompanying text. 82 Dep’t of Transp v Tomkins, 481 Mich 184, 198 ; 749 NW2d 716 (

2020But it is hard to imagine what the majority would do in such a case besides either denying the takings claim under the theory it adopts here or reconsidering whether it is based on the taxpayer’s right to the equity in his or her property. 80 See Polonsky, slip op at 5 (noting that the statutory scheme did not require the government to sell the foreclosed property but that, in those cases, the government has conflicts with the Takings Clause by failing to pay over the equity). 81 See note 52 of this opinion and accompanying text. 82 Dep’t of Transp v Tomkins, 481 Mich 184, 198 ; 749 NW2d 716 (

2020INTERPRETIVE ISSUES The majority correctly notes that “a claimant must first establish a vested property right under state law” in order to have a takings claim and that “ ‘the existence of a property interest is determined by reference to existing rules or understandings that stem from an independent source such as state law.’ ”2 Then the majority recounts the familiar rule that “[o]ur ‘primary objective’ in interpreting a constitutional provision such as our state’s Takings Clause is ‘to determine the text’s original meaning to the ratifiers, the people, at the time of ratification.’ ”3 Howe

2020INTERPRETIVE ISSUES The majority correctly notes that “a claimant must first establish a vested property right under state law” in order to have a takings claim and that “ ‘the existence of a property interest is determined by reference to existing rules or understandings that stem from an independent source such as state law.’ ”2 Then the majority recounts the familiar rule that “[o]ur ‘primary objective’ in interpreting a constitutional provision such as our state’s Takings Clause is ‘to determine the text’s original meaning to the ratifiers, the people, at the time of ratification.’ ”3 Howe

2020My point is only that no such limitation may be found in the Takings Clause. 26 Bowen v Gilliard, 483 US 587, 607 ; 107 S Ct 3008 ; 97 L Ed 2d 485 (1987); see also Peterson, The Taking Clause: In Search of Underlying Principles Part I—A Critique of Current Takings Clause Doctrine, 77 Calif L Rev 1299, 1313 (1989) (“In a number of other takings cases, the Court has said that unless a right created by positive law is a ‘vested right,’ it is not property within the meaning of the takings clause.

2020My point is only that no such limitation may be found in the Takings Clause. 26 Bowen v Gilliard, 483 US 587, 607 ; 107 S Ct 3008 ; 97 L Ed 2d 485 (1987); see also Peterson, The Taking Clause: In Search of Underlying Principles Part I—A Critique of Current Takings Clause Doctrine, 77 Calif L Rev 1299, 1313 (1989) (“In a number of other takings cases, the Court has said that unless a right created by positive law is a ‘vested right,’ it is not property within the meaning of the takings clause.

2020In order to pursue judicial review of a takings claim in the context of land use regulations, “the complaining party must satisfy the rule of finality”—the landowner must “show that ‘the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.’ ” Frenchtown Charter Twp v City of Monroe, 275 Mich App 1, 6 ; 737 NW2d 328 (2007), quoting Paragon Props Co v Novi, 452 Mich 568, 577 ; 550 NW2d 772 (1996).

2020In order to pursue judicial review of a takings claim in the context of land use regulations, “the complaining party must satisfy the rule of finality”—the landowner must “show that ‘the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.’ ” Frenchtown Charter Twp v City of Monroe, 275 Mich App 1, 6 ; 737 NW2d 328 (2007), quoting Paragon Props Co v Novi, 452 Mich 568, 577 ; 550 NW2d 772 (1996).

2018SELF-IMPOSED HARDSHIP Caselaw has established a legal doctrine known as the "self-imposed hardship rule," which "applies to preclude relief in taking claims asserted by a property owner who has subdivided or physically altered the land so as to render it unfit for the uses for which it is zoned...." Wolverine Commerce, LLC v. Pittsfield Charter Twp. , 483 Mich. 1023 , 1024, 765 N.W.2d 343 (2009).

2018SELF-IMPOSED HARDSHIP Caselaw has established a legal doctrine known as the "self-imposed hardship rule," which "applies to preclude relief in taking claims asserted by a property owner who has subdivided or physically altered the land so as to render it unfit for the uses for which it is zoned...." Wolverine Commerce, LLC v. Pittsfield Charter Twp. , 483 Mich. 1023 , 1024, 765 N.W.2d 343 (2009).

2017Similarly, although this Court in Jones v East Lansing-Meridian Water & Sewer Auth, 98 Mich App 104 ; 296 NW2d 202 (1980), recognized that a municipality’s withdrawals of groundwater could give rise to a takings claim, id. at 110 , the holding in that case was based on the fact that the withdrawals had unreasonably interfered with the plaintiffs’ subterranean water rights, causing those plaintffs to experience loss of the ability to pump water.

2017Similarly, although this Court in Jones v East Lansing-Meridian Water & Sewer Auth, 98 Mich App 104 ; 296 NW2d 202 (1980), recognized that a municipality’s withdrawals of groundwater could give rise to a takings claim, id. at 110 , the holding in that case was based on the fact that the withdrawals had unreasonably interfered with the plaintiffs’ subterranean water rights, causing those plaintffs to experience loss of the ability to pump water.

2017“In order to prevail on a takings claim, a claimant first must demonstrate a cognizable interest in the affected private property.” Mich Soft Drink Ass’n v Dep’t of Treasury, 206 Mich App 392, 402 ; 522 NW2d 643 (1994), lv den 448 Mich 898 (1995).

2017“In order to prevail on a takings claim, a claimant first must demonstrate a cognizable interest in the affected private property.” Mich Soft Drink Ass’n v Dep’t of Treasury, 206 Mich App 392, 402 ; 522 NW2d 643 (1994), lv den 448 Mich 898 (1995).

2016Id. at 1223 .

2016Id. at 1223 .

2025Moreover, the “doctrine of ripeness precludes the adjudication of contingent or hypothetical claims before an actual injury has been sustained; a matter is not ripe for judicial consideration if it rests on contingent future events that may not occur as anticipated or may not occur at all.” Green v Ziegelman, 282 Mich App 292, 305 ; 767 NW2d 660 (2009).

2025Moreover, the “doctrine of ripeness precludes the adjudication of contingent or hypothetical claims before an actual injury has been sustained; a matter is not ripe for judicial consideration if it rests on contingent future events that may not occur as anticipated or may not occur at all.” Green v Ziegelman, 282 Mich App 292, 305 ; 767 NW2d 660 (2009).

2024Further, this Court held in Andrews that claims “for just compensation under the Takings Clause [do] not fall under [MCL 211.78l] because a takings claim is unrelated to the provision of notice under the GPTA.” Although this is not binding precedent, Paris Meadows, LLC v City of Kentwood, 287 Mich App 136 , 145 n 3; 783 NW2d 133 (2010), this Court finds Andrews persuasive because that earlier version of MCL 211.78l consistently referred to claims under that section for the purposes of notice.

2024Further, this Court held in Andrews that claims “for just compensation under the Takings Clause [do] not fall under [MCL 211.78l] because a takings claim is unrelated to the provision of notice under the GPTA.” Although this is not binding precedent, Paris Meadows, LLC v City of Kentwood, 287 Mich App 136 , 145 n 3; 783 NW2d 133 (2010), this Court finds Andrews persuasive because that earlier version of MCL 211.78l consistently referred to claims under that section for the purposes of notice.